Citation Nr: 9930910
Decision Date: 10/29/99 Archive Date: 11/04/99
DOCKET NO. 97-20 847 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical & Regional Office
Center in Fort Harrison, Montana
THE ISSUES
1. Entitlement to service connection for a left hand
disorder.
2. Entitlement to service connection for a right shoulder
disorder.
3. Entitlement to an initial compensable evaluation for
hearing loss.
4. Entitlement to an initial compensable evaluation for
bronchitis.
5. Entitlement to an initial rating in excess of 10 percent
for lumbosacral strain.
6. Entitlement to an initial rating in excess of 10 percent
for a right knee disability.
REPRESENTATION
Appellant represented by: Montana Veterans Affairs
Division
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. A. Wasik, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1965 to
December 1967 and from January 1975 to August 1995.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of an April 1996 rating decision of the Department
of Veterans Affairs (VA) Medical and Regional Office Center
(M&ROC). In April 1995, the M&ROC denied the claims of
entitlement to service connection for residuals of swollen
testicles, for residuals of a foreign body in the right eye,
for residuals of a growth on the scrotum, for sinusitis and
for left elbow, left hand, right shoulder and left ankle
conditions. The M&ROC granted service connection for
residuals of a fracture of the left toe at a noncompensable
level, for bilateral hearing loss at a noncompensable level,
for a scar on the lower lip at a noncompensable level, for
chronic bronchitis at a noncompensable level, for lumbosacral
strain at a noncompensable level and for a right knee
disability which was evaluated as 10 percent disabling.
In March 1997, the veteran submitted a notice of disagreement
with the denials of service connection for residuals of a
foreign body in the right eye, and for left elbow, left hand,
right shoulder, and left ankle conditions.
The veteran's notice of disagreement also expressed
disagreement with the initial disability evaluations assigned
for the right knee disability, lumbosacral strain, hearing
loss and bronchitis. The veteran's substantive appeal, which
was received at the M&ROC in June 1997 included argument on
all the issues listed on the veteran's notice of disagreement
with the exception of argument pertaining to residuals of a
foreign body in the right eye. The Board has determined that
the veteran did not perfect his appeal of the denial of
service connection for residuals of a foreign body in the
right eye.
By rating decision dated in June 1998, the M&ROC granted
service connection for a left elbow disability and for a left
ankle disability. The M&ROC also granted an increased rating
for lumbosacral strain to 10 percent. The veteran did not
express disagreement with the initial disability evaluations
assigned for the left elbow and left ankle disabilities which
became final in June 1999. The veteran also did not indicate
that he was satisfied with the increased disability
evaluation assigned for his lumbosacral strain.
The appellant is generally presumed to be seeking the maximum
benefit available by law, and it follows that such a claim
remains in controversy where less than the maximum benefit
available is awarded. AB v. Brown, 6 Vet. App. 35 (1993).
Based on the above, the Board finds the issues currently
before it are as listed on the title page of this decision.
The issues of entitlement to increased ratings for
lumbosacral strain and for a right knee disability are
addressed in the remand portion of this examination.
FINDINGS OF FACT
1. The claims of entitlement to service connection for a
left hand disorder and a right shoulder disorder are not
supported by cognizable evidence showing that the claims are
plausible or capable of substantiation.
2. The March 1998 VA audiological examination disclosed that
the veteran has Level I hearing loss in the left ear,
manifested by an average pure tone decibel loss of 51
decibels with 94 percent discrimination ability, and Level II
hearing loss in the right ear, manifested by an average pure
tone decibel loss of 58 decibels with 94 percent
discrimination ability.
3. There was no evidence of a morning or night cough prior
to the February 14, 1998 M&ROC hearing.
4. The service-connected bilateral hearing loss and
bronchitis have not rendered the veteran's disability picture
unusual or exceptional in nature, markedly interfered with
employment, or required frequent inpatient care as to render
impractical the application of regular schedular standards.
CONCLUSIONS OF LAW
1. The claims for service connection for a left hand
disorder and a right shoulder disorder are not well-grounded.
38 U.S.C.A. § 5107(a) (West 1991).
2. The criteria for an initial compensable evaluation for
bilateral hearing loss have not been met. 38 U.S.C.A. §§
1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2,
4.7, 4.85, 4.86, 4.87a, Diagnostic Code 6100 (effective prior
to June 10, 1999); 38 C.F.R. §§ 4.85, 4.86, 4.87; Diagnostic
Code 6100; 64 Fed.Reg. 25202-25210 (May 11, 1999) (effective
June 10, 1999).
3. The criteria for an initial compensable evaluation for
bronchitis from September 1, 1995 to February 13, 1998 have
not been met; and for a 10 percent evaluation effective on
and after February 14, 1998 have been met. 38 U.S.C.A.
§§ 1155, 5107(a); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97,
Diagnostic Code 6600 (effective prior to October 7, 1996);
38 C.F.R. §§ 4.7, 4.97; Diagnostic Code 6600; 61 Fed.Reg.
46720-46731 (September 5, 1996) (effective October 7, 1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
Review of the service medical records shows that in March
1984, mild bronchitis was noted. In February 1987, the
veteran sought treatment for right shoulder pain. The
assessment at that time was tendonitis. In October 1993, a
diagnosis of bronchitis versus chronic cough of questionable
etiology was made.
On the exit examination conducted in March 1995, degenerative
joint disease of multiple sites, arthralgia and bilateral
hearing loss was found. On audiological examination, pure
tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
45
40
35
60
LEFT
25
45
60
60
60
On the Report of Medical History portion of the exit
examination, the veteran noted, in pertinent part, he had
experienced hearing loss, shortness of breath, and a painful
or trick shoulder during active duty. It was noted on the
form that the veteran had respiratory problems in the fall of
1991 which resolved spontaneously.
The report of a November 1995 VA examination has been
associated with the claims file. The veteran reported that
he injured his right shoulder in 1986 after a fall during
maneuvers. Two months after the fall, the shoulder was
painful. With regard to his left hand, he reported that he
did not incur any specific trauma but had developed stiffness
and pain.
Physical examination revealed that the lungs were clear to
auscultation and percussion. Examination of the right
shoulder failed to reveal any abnormality. Physical
examination of the left hand was normal without
abnormalities.
The pertinent diagnoses were rule out migratory arthritis due
to complaints of pain in the right shoulder and left hand and
history of bronchitis. X-rays of the chest and right
shoulder were interpreted as normal. Pulmonary function
testing revealed that FEV-1 was 103% of predicted value and
FEV-1/FVC was 86%. It was noted that the veteran made a good
effort and cooperated.
On audiological evaluation in November 1995, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
Not
reported
35
60
65
65
LEFT
Not
reported
50
45
35
60
Speech audiometry revealed speech recognition ability of 94
percent in the right ear and of 94 percent in the left ear.
The transcript of a January 1998 M&ROC hearing has been
associated with the claims file. The veteran testified that
he had not received any post-service treatment for his
hearing loss. He wore hearing aids. He felt that his
hearing acuity had decreased over the prior two years. He
testified that he experienced a considerable productive cough
in the morning and at night. He also reported that he was
short of breath upon exertion and had scattered rales. He
thought the disorder had increased in severity since his last
VA examination. He had not received any post-service
treatment for his bronchitis. He took over the counter
medications. He testified that he injured his right shoulder
while on maneuvers in November 1986. He did not seek
treatment for the injury as he had to attend a First Sergeant
course shortly after the accident. He did not know when he
injured his left hand.
The veteran testified that E. J. A., M.D., examined his left
hand but the veteran was unable to relate what the doctor
found upon the examination. He did not seek treatment for a
left hand injury during active duty.
The report of a February 1998 VA examination of the veteran's
pulmonary system is of record. The veteran complained of
shortness of breath. He quit smoking in 1985 due to a marked
decrease in the ability to breathe and emphysema. He
reported that he could walk approximately half a mile before
he became short of breath. He had a cough when he woke up in
the morning and at nighttime. The cough was usually
non-productive but occasionally he would bring up clear
phlegm.
Physical examination revealed that the lungs were clear to
percussion. On auscultation no rales, wheezes or rhonchi
were noted. The examiner did note that the veteran had a
shortened expiratory and inspiratory phase. X-rays revealed
a stable chest without infiltrate. The impression from the
examination was chronic obstructive pulmonary disease.
Pulmonary function testing was conducted in February 1998.
It was determined that the results of the pulmonary function
testing were invalid due to the veteran's manipulation of the
results. Ten trials were conducted and none were
reproducible. The veteran used poor efforts.
A VA orthopedic examination was conducted in February 1998.
The veteran complained of pain in his left hand and right
shoulder. Physical examination revealed a full range of
motion in the shoulder. Hand grip strength was equal
bilaterally. X-rays of the right shoulder revealed slight
osteophyte formation about the medial humeral head which was
described as very minimal and was probably within normal
limits for the veteran's age group. The acromioclavicular
joint was normal. X-rays of the left hand revealed normal
interphalangeal and metacarpal phalangeal joints. All the
wrist joints and thumb joints were normal. There was no
evidence of degenerative or traumatic injury or disease.
The examiner noted that there was no evidence of injury to
the left hand. He opined that there could possibly be some
sensory nerve impingement in the dorsal forearm, but this was
a rare condition with no definite way to prove it. The
examiner further noted that there was no evidence of a right
shoulder disability. There might have been some chronic
subacromial tendonitis that could not be demonstrated at the
time of the examination. There was no loss of motion and
there appeared to be very little pain during range of motion.
A VA audiological examination was conducted in March 1998.
Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
Not
reported
40
60
65
65
LEFT
Not
reported
50
50
40
65
Speech audiometry revealed speech recognition ability of 94
percent in the right ear and of 94 percent in the left ear.
I. Entitlement to service connection for
a left hand disorder and a right shoulder
disorder.
Criteria
The threshold question that must be resolved with regard to
the claims of entitlement to service connection for a left
hand disorder and right shoulder disorder is whether the
veteran has presented evidence of well-grounded claims. See
38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski,
1 Vet. App. 78, 81 (1990).
A well-grounded claim is a plausible claim that is
meritorious on its own or capable of substantiation. See
Murphy, 1 Vet. App. at 81.
An allegation of a disorder that is service connected is not
sufficient; the veteran must submit evidence in support of
his claim that would "justify a belief by a fair and
impartial individual that the claim is plausible." See 38
U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611
(1992).
The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the
issues presented by the claims. Grottveit v. Brown, 5 Vet.
App. 91, 92-93 (1993).
In determining whether a claim is well grounded, the
claimant's evidentiary assertions are presumed true unless
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet. App. 19, 21 (1993).
In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet. App.
498 (1995).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993).
Lay assertions of medical causation cannot constitute
evidence to render a claim well grounded under 38 U.S.C.A.
§ 5107(a) (West 1991); if no cognizable evidence is submitted
to support a claim, the claim cannot be well grounded. Id.
In order to obtain service connection, there must be both
evidence of a disease or injury that was incurred in or
aggravated by service, and a present disability which is
attributable to such disease or injury. 38 U.S.C.A. § 1110
(West 1991); 38 C.F.R. § 3.303 (1999).
When a disability is not initially manifested during service
or within an applicable presumptive period, "direct" service
connection may nevertheless be established by evidence
demonstrating the disability was in fact incurred or
aggravated during the veteran's service. See 38 U.S.C.A. §
1113(b) (West 1991 & Supp. 1999); 38 C.F.R. § 3.303(d).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1999).
Analysis
Section 5107 of Title 38, United States Code unequivocally
places an initial burden upon the claimant to produce
evidence that his claims are well grounded; that is, that his
claims are plausible. Grivois v. Brown, 6 Vet. App. 136, 139
(1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993).
Because the appellant has failed to meet this burden, the
Board finds that his claims of entitlement to service
connection for a left hand disorder and a right shoulder
disorder must be denied as not well grounded.
The veteran was treated one time during active duty for a
shoulder disorder in February 1987. Thereafter during the
remaining eight years of active duty there was no evidence of
a diagnosis of or treatment for any shoulder disorder. While
the veteran reported that he had a painful or trick shoulder
on the March 1995 Report of Medical History, no such disorder
was noted on the separation examination.
There is no competent post-service evidence associated with
the claims file demonstrating that the veteran currently has
a right shoulder disorder. At the time of the most recent VA
examination conducted in February 1998, the examiner reported
that there was no evidence of a right shoulder disability.
With regard to the claim of entitlement to service connection
for a left hand disorder, the Board notes there is no
evidence of record of a hand injury being incurred during
active duty. There were no complaints of, diagnosis of or
treatment for any hand injury. Additionally, there is no
competent evidence of record demonstrating that the veteran
currently has a left hand disorder which was linked to active
duty.
At the time of the most recent VA examination conducted in
February 1998, the examiner reported that there was no
evidence of injury to the left hand. The examiner's
notation that the veteran could have some sensory nerve
impingement in the dorsal arm does not constitute a diagnosis
of that disorder. Additionally, even if it could be
construed that the examiner diagnosed a sensory nerve
impingement in the dorsal arm, such disorder was not linked
to active duty.
As there is no evidence of a chronic right shoulder disorder
or a left hand disorder incurred during active duty and as
there is no competent post-service evidence of record
demonstrating that the veteran currently has a right shoulder
disorder and/or a left hand disorder which was linked to
active duty, the claims of entitlement to service connection
for a right shoulder disorder and a left hand disorder must
be denied as not well-grounded.
The veteran's claims that he has a right shoulder disorder
and a left hand disorder as a result of active duty are
predicated upon his own unsubstantiated opinions. As it is
the province of trained health care professionals to enter
conclusions which require medical opinions as to causation,
Grivois, the veteran's lay opinions are an insufficient basis
upon which to find his claims well grounded. Espiritu, King.
Accordingly, as a well grounded claim must be supported by
evidence, not merely allegations, Tirpak, the veteran's
claims for service connection for a right shoulder disorder
and a left hand disorder must be denied as not well grounded.
The Board notes that the veteran testified at the January
1998 M&ROC hearing that his left hand disorder had been
examined by E. J. A., M.D., and such records have not been
associated with the claims file. The veteran further
testified that he would obtain the treatment records. The
United States Court of Appeals for Veterans Claims
(hereinafter, "the Court")" has held that if the veteran
wants VA to consider documents not in the possession of the
Federal government, he must 1) furnish them to VA, or 2)
request VA to obtain them, provide an appropriate release for
such purpose, and demonstrate how the documents are relevant
to the claim. Counts v. Brown, 6 Vet. App. 473 (1994).
The veteran did not furnish the treatment documents as he
alleged he would do and he further did not request VA to
obtain them. He also did not demonstrate how such treatment
records were relevant to the claim. He testified that he was
unable to relate what the physician actually said regarding
the hand disorder. Based on the specific facts of this case,
VA has satisfied its duty to inform the veteran under 38
U.S.C.A. § 5103(a). See Slater v. Brown, 9 Vet. App. 240,
244 (1996).
The Board further finds that the M&ROC advised the appellant
of the evidence necessary to establish a well grounded claim,
and the appellant has not indicated the existence of any post
service medical evidence, other than that described above,
that has not already been requested and/or obtained that
would well ground his claims. 38 U.S.C.A. § 5103(a) (West
1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997);
Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
As the veteran has not submitted well grounded claims of
entitlement to service connection for a right shoulder
disorder and a left hand disorder, the doctrine of reasonable
doubt has no application.
Criteria applicable for claims of increased ratings.
Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities (Schedule), 38 C.F.R.
Part 4 (1999).
The percentage ratings contained in the Schedule represent,
as far as can be practicably determined, the average
impairment in earning capacity resulting from diseases and
injuries incurred or aggravated during military service and
the residual conditions in civil occupations. 38 U.S.C.A. §
1155; 38 C.F.R. § 4.1 (1999).
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise the lower rating will be
assigned. 38 C.F.R. § 4.7 (1999).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
In general, the bases for evaluating defective hearing will
be the impairment of auditory acuity with the conversational
voice range according to findings reported by audiology
clinic examinations as certified. For VA purposes,
impairment of auditory acuity contemplates the degrees of
organic hearing loss for speech. 38 C.F.R. § 4.87.
Evaluations for defective hearing range from noncompensable
to 100 percent and are based on organic impairment of hearing
acuity as measured by results of controlled speech
discrimination tests and by average pure tone threshold
levels obtained by audiometric testing. To evaluate the
degree of disability resulting from defective hearing which
is service-connected, the rating schedule establishes, based
on the average pure tone threshold levels and the results of
the controlled speech discrimination tests, 11 auditory
acuity levels from numeric designations I (for an essentially
normal acuity level) to level XI (for profound deafness).
38 C.F.R. § 4.85, Diagnostic Codes 6100 to 6110 (1999)
(Effective prior to and subsequent June 10, 1999).
Impairment of auditory acuity means the organic hearing loss
for speech. 38 C.F.R. § 4.87 (1999).
The schedule takes into consideration that a veteran may wear
hearing aid(s). 38 C.F.R. § 4.86 (1999).
The assignment of a disability rating for hearing impairment
is derived by a mechanical application of the rating schedule
to the numeric designations assigned after audiometric
evaluations are rendered. Lendenmann v. Principi, 3 Vet.
App. 345, 349 (1992).
The Board notes that the schedular criteria for evaluation of
diseases of the trachea and bronchi were changed effective
October 7, 1996. 61 Fed. Reg. 46720 (Sept. 5, 1996). Where
a law or regulation changes after a claim has been filed or
reopened, but before the administrative or judicial appeal
process has been concluded, the version more favorable to an
appellant applies unless Congress provided otherwise or
permitted the Secretary to do otherwise and the Secretary
does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); Karnas v.
Derwinski, 1 Vet. App. 308 (1991). Thus, the veteran's
bronchitis must be evaluated under both the old and the new
rating criteria to determine which version is more favorable
to the veteran.
Prior to October 7, 1996, a noncompensable rating was
warranted under Diagnostic Code 6600 for mild bronchitis with
a slight cough, no dyspnea and a few rales. The next
schedular evaluation of 10 percent required moderate
bronchitis with considerable night or morning cough, slight
dyspnea on exercise and scattered bilateral rales. A 30
percent rating required moderately severe chronic bronchitis,
with persistent cough at intervals throughout the day,
considerable expectoration, considerable dyspnea on exertion,
rales throughout the chest, and beginning chronic airway
obstruction. For a 60 percent evaluation to be assigned
there must have been severe chronic bronchitis, with severe
productive cough and dyspnea on slight exertion, and
pulmonary function tests indicative of severe ventilatory
impairment. 38 C.F.R. Part 4, Code 6600. 38 C.F.R. § 4.97,
Diagnostic Code 6600 (1996).
The rating criteria currently in effect for evaluating
Chronic bronchitis under Diagnostic Code 6600 provides that
when FEV-1 is less than 40 percent of predicted value, or
FEV-1/FVC is less than 40 percent, or DLCO (SB) is less than
40 percent of the predicted value, or maximum exercise
capacity is less than 15 ml/kg/min oxygen consumption (with
cardiac or respiratory limitation), or cor pulmonale, or
right ventricular hypertrophy, or pulmonary hypertension
(shown by Echo or cardiac catheterization), or episode(s) of
acute respiratory failure, or outpatient oxygen therapy is
required, a 100% disability evaluation is warranted. When
FEV-1 is 40 to 55 percent of the predicted amount, or FEV-
1/FVC is 40 to 55 percent, or DLCO (SB) is 40 to 55 percent
of the predicted amount, or maximum oxygen consumption is 15
to 20 ml/kg/min (with cardiorespiratory limit), then a 60%
disability evaluation is warranted. When FEV-1 is 56 to 70
percent of the predicted value, or FEV-1/FVC is 56 to 70
percent, or DLCO (SB) is 56 to 65 percent of the predicted
value then a 30% disability evaluation is warranted. When
FEV-1 is 71 to 80 percent of the predicted value, or FEV-
1/FVC is 71 to 80 percent, or DLCO (SB) is 66 to 80 percent
of the predicted value then a 10% disability evaluation is
warranted.
Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience.
To accord justice, therefore, to the exceptional case where
the schedular evaluations are found to be inadequate, the
Under Secretary for Benefits or the Director, Compensation
and Pension Service, upon field station submission, is
authorized to approve on the basis of the criteria set forth
in this paragraph an extra-schedular evaluation commensurate
with the average earning capacity impairment due exclusively
to the service-connected disability or disabilities. The
governing norm in these exceptional cases is: A finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1).
When all of the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1999).
II. Entitlement to an initial
compensable evaluation for bilateral
hearing loss.
Analysis
Initially, the Board notes the claim of entitlement to an
initial compensable evaluation for bilateral hearing loss is
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
In general, allegations of increased disability are
sufficient to establish a well grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). The veteran's assertions concerning the severity of
the hearing loss (that are within the competence of a lay
party to report) are sufficient to conclude that his claim
for an initial compensable evaluation is well grounded.
When the most recent test scores for the right ear (average
pure tone loss of 58 decibels and 94 percent speech
discrimination) are entered into Table VI of § 4.87, the
result is a numeric designation of II.
When the most recent test scores for the left ear (average
pure tone loss of 51 decibels and 94 percent speech
discrimination) are entered into Table VI of § 4.87, the
result is a numeric designation of I. Applying the numeric
designations of II for the right ear and I for the left ear
to Table VII of § 4.87, the percentage evaluation is zero or
non-compensable, under Diagnostic Code 6100, under the
previous rating criteria, or amended criteria for rating
hearing loss which became effective June 10, 1999. On the
basis of the evidence of record, the preponderance of the
evidence is against the claim for an initial compensable
evaluation for bilateral hearing loss.
The Board acknowledges the veteran's complaints that his
hearing loss is more disabling than currently evaluated.
While there is no dispute in this case that the veteran does
have a significant hearing loss in each ear, the overall
severity of such hearing loss falls short of meeting the
criteria for a compensable rating. In this regard, the Board
notes that the February 1998 VA audiology examination failed
to show that the veteran's bilateral hearing loss is more
than noncompensably disabling with application of the
pertinent rating criteria. The Board has no discretion in
this regard and must predicate its determination on the basis
of the latest audiology studies on record.
No question has been presented as to which of two evaluations
would more properly classify the severity of the service-
connected bilateral hearing loss. 38 C.F.R. § 4.7.
For the foregoing reasons, the Board concludes that the
evidentiary record does not support a grant of entitlement to
an initial compensable evaluation for bilateral hearing loss
with application of the previous as well as amended rating
criteria.
Although the veteran is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of
the doubt doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim for an
increased evaluation.
The Board notes that this case involves an appeal as to the
initial rating of the appellant's hearing loss, rather than
an increased rating claim where entitlement to compensation
had previously been established. Fenderson v. West, 12 Vet.
App. 119 (1999). In initial rating cases, separate ratings
can be assigned for separate periods of time based on the
facts found, a practice known as "staged" ratings. Id. at 9.
In the case at hand, as an increased rating is not warranted
for the service-connected hearing loss, the Board finds that
a staged rating is not appropriate.
III. Entitlement to an initial
compensable evaluation for bronchitis.
Analysis
Initially, the Board notes the claim of entitlement to an
initial compensable evaluation for bronchitis is well
grounded. 38 U.S.C.A. § 5107(a) (West 1991). In general,
allegations of increased disability are sufficient to
establish a well grounded claim seeking an increased rating.
Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The
veteran's assertions concerning his bronchitis (that are
within the competence of a lay party to report) are
sufficient to conclude that his claim for an initial
compensable evaluation is well grounded.
The service-connected bronchitis is currently evaluated as
non-compensably disabling under Diagnostic Code 6600.
The Board finds an increased rating is not warranted based
upon the rating criteria currently in effect under Diagnostic
Code 6600. The Board notes the results of the February 1998
pulmonary function testing were determined to be invalid due
to the veteran's non-compliance. The results of such testing
cannot be used as they were determined by competent medical
professionals to not be representative of the veteran's
actual pulmonary functioning. Pulmonary function testing was
also conducted in November 1995. At that time, it was
determined that the FEV-1 was 103% of the predicted value and
the FEV-1/FVC was 86%. When the results of the November 1995
pulmonary function testing are applied to the rating criteria
under Diagnostic Code 6600, the disability is shown to be
non-compensably disabling.
The Board finds an increased rating is warranted when the
service-connected bronchitis is evaluated pursuant to the
criteria under Diagnostic Code 6600 in effect prior to
November 7, 1996. The veteran testified at the time of the
January 14, 1998 M&ROC hearing that he experienced a
considerable cough in the morning and at night. He also
reported he was short of breath upon exertion and had
scattered rales. At the time of the subsequent February 1998
VA examination, the veteran again reported that he
experienced a cough in the morning and at night. No rales
were noted at that time.
The Board finds such testimony is sufficient to grant an
increased rating to 10 percent for bronchitis based on a
considerable night or morning cough. The Board finds the
veteran is competent to report on the frequency of the cough
he experiences. The veteran also testified that he was short
of breath on exertion and had scattered rales. The Board
finds he is competent to report that he has shortness of
breath. He is not, however, competent to quantify the extent
of the shortness of breath on exertion he experiences as
slight, considerable or severe. He also is not competent to
report that he experienced rales which competent medical
examination failed to find.
There is no evidence of record demonstrating that the veteran
had a persistent cough at intervals throughout the day,
considerable expectoration, considerable dyspnea on exertion
or rales throughout the chest.
The February 1998 VA examination of the pulmonary system
resulted in a diagnosis of chronic obstructive pulmonary
disease. The Board notes that beginning chronic airway
obstruction is one of the criteria included for a 30 percent
disability evaluation under Diagnostic Code 6600 in effect
prior to November 7, 1996.
The Board finds, however, that as there is no competent
evidence of record demonstrating that the veteran had any of
the other criteria for a 30 percent evaluation the disability
picture more nearly approximates the criteria for a 10
percent rating. 38 C.F.R. § 4.7 (1999). The service-
connected bronchitis is productive of no more than moderate
disability.
The Board notes that this case involves an appeal as to the
initial rating of the appellant's bronchitis, rather than an
increased rating claim where entitlement to compensation had
previously been established. Fenderson v. West, 12 Vet.
App. 119 (1999). In initial rating cases, separate ratings
can be assigned for separate periods of time based on the
facts found, a practice known as "staged" ratings. Id. at 9.
The Board finds that a staged rating is appropriate for the
assignment of the 10 percent disability evaluation.
The veteran testified at the M&ROC hearing conducted on
January 14, 1998, that he experienced a considerable cough in
the morning and at night and also shortness of breath. The
Board has based the grant of an increased rating on this
testimony. Review of the claims file fails to evidence any
evidence of symptomatology which would warrant an initial
compensable evaluation prior to the January 1998 hearing.
The Board finds that the veteran's bronchitis was non-
compensably disabling from September 1, 1995 to February 13,
1998 and was 10 percent disabling from February 14, 1998.
With respect to the claims for increased evaluations, the
Board observes that in light of Floyd v. Brown, 9 Vet.
App. 88 (1996), the Board does not have jurisdiction to
assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1)
(1999) in the first instance. The Board however, is still
obligated to seek all issues that are reasonably raised from
a liberal reading of documents or testimony of record and to
identify all potential theories of entitlement to a benefit
under the law or regulations.
In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court
clarified that it did not read the regulation as precluding
the Board from affirming an M&ROC conclusion that a claim
does not meet the criteria for submission pursuant to
38 C.F.R. § 3.321(b)(1). Or from reaching such conclusion on
its own. In the veteran's case at hand, the M&ROC provided
and discussed the criteria for assignment of an
extraschedular rating, and determined that the veteran's
disability picture was not unusual or exceptional so as to
warrant referral to the Under Secretary or Director for
consideration of an increased evaluation on this basis.
The Board agrees with the determination of the M&ROC. The
evidence of record does not indicate that the veteran's
service-connected hearing loss and bronchitis present such an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
standards so as to warrant the assignment of an
extraschedular rating under 38 C.F.R. § 3.321(b)(1).
Specifically, the hearing loss and bronchitis have not
required frequent periods of hospitalization, and there is no
evidence that they have resulted in marked interference in
employment as to render impracticable the application of
regular schedular standards. 38 C.F.R. § 3.321(b).
ORDER
The veteran not having submitted well grounded claims of
entitlement to service connection for a left hand disorder
and a right shoulder disorder, the appeals are denied.
Entitlement to an initial compensable evaluation for
bilateral hearing loss is denied.
Entitlement to an initial compensable evaluation for
bronchitis from September 1, 1995 to February 13, 1998 is
denied; entitlement to a 10 percent rating effective on and
after February 14, 1998 is granted, subject to the governing
criteria applicable to the payment of monetary awards.
REMAND
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the M&ROC. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the
M&ROC. The law requires that all claims that are remanded by
the Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Initially, the Board notes the claims of entitlement to
increased ratings for lumbosacral strain and a right knee
disability are well grounded. 38 U.S.C.A. § 5107(a) (West
1991). In general, allegations of increased disability are
sufficient to establish a well grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). The veteran's assertions concerning the severity of
the lumbosacral strain and a right knee disability (that are
within the competence of a lay party to report) are
sufficient to conclude that his claims for increased ratings
are well grounded.
As the claims of entitlement to increased ratings for
lumbosacral strain and for a right knee disability have been
found to be well grounded, VA has a duty to assist the
veteran in development of his claims.
At the time of the February 1998 M&ROC hearing, the veteran
reported that he had received treatment for his right knee
from E. J. A., M.D. who was a rheumatologist. Review of the
claims file demonstrates that such records have not been
associated with the claims file. The veteran also testified
that he had received treatment for his knee from Dr. S, a VA
physician. These records have not been associated with the
claims file. The Board finds the M&ROC should attempt to
obtain these treatment records.
The veteran's right knee disability is currently evaluated as
10 percent disabling under Diagnostic Code 5257.
Diagnostic Code 5257 provides the rating criteria for
evaluation of impairment of the knee. Slight impairment of
either knee, including recurrent subluxation or lateral
instability, warrants a 10 percent evaluation. A 20 percent
evaluation requires moderate impairment and a 30 percent
evaluation requires severe impairment. 38 C.F.R. Part 4,
Diagnostic Code 5257.
Additionally, the right knee disability may be evaluated
under the provisions of Diagnostic Codes 5260 and 5261.
Limitation of flexion of either leg to 45 degrees warrants a
10 percent evaluation. A 20 percent evaluation requires that
flexion be limited to 30 degrees. Flexion must be limited to
15 degrees for a 30 percent evaluation. 38 C.F.R. Part 4,
Diagnostic Code 5260 (1999).
Limitation of extension of either leg to 10 degrees warrants
a 10 percent evaluation. A 20 percent evaluation requires
that extension be limited to 15 degrees. Extension must be
limited to 20 degrees for a 30 percent evaluation. 38 C.F.R.
Part 4, Diagnostic Code 5261 (1999).
The veteran's service-connected lumbosacral strain is
currently evaluated as non-compensably disabling under
Diagnostic Code 5295.
Diagnostic Code 5295 provides criteria for rating lumbosacral
strain. Diagnostic Code 5295 provides a zero percent rating
for lumbosacral strain with slight subjective symptoms only.
A 10 percent rating is assigned for lumbosacral strain with
characteristic pain on motion. A 20 percent evaluation is
warranted for lumbosacral strain where there is muscle spasm
on extreme forward bending and unilateral loss of lateral
spine motion in a standing position. A 40 percent evaluation
requires severe lumbosacral strain manifested by listing of
the whole spine to the opposite side, a positive Goldthwait's
sign, marked limitation of forward bending in a standing
position, loss of lateral motion with osteoarthritis changes,
or narrowing or irregularity of the joint space. A 40
percent evaluation is also warranted if only some of those
manifestations are present if there is also abnormal mobility
on forced motion. 38 C.F.R. Part 4, Code 5295.
The lumbosacral strain can also be evaluated under Diagnostic
Code 5292. Diagnostic Code 5292 provides for the evaluation
of limitation of motion of the lumbar spine. When the
limitation of motion of the lumbar spine is slight, a 10
percent rating is provided. When the limitation of motion is
moderate, a 20 percent rating is provided. When the
limitation of motion is severe, a rating of 40 percent is
warranted. 38 C.F.R. Part 4, Code 5292.
The Court has held that when a diagnostic code provides for
compensation based solely upon limitation of motion, the
provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be
considered, and that examinations upon which the rating
decisions are based must adequately portray the extent of
functional loss due to pain "on use or due to flare-ups."
DeLuca v. Brown, 8 Vet. App. 202 (1995). In pertinent part,
38 C.F.R. § 4.40 provides:
Disability of the musculoskeletal system
is primarily the inability, due to damage
or infection in parts of the system, to
perform the normal working movements of
the body with normal excursion, strength,
speed, coordination and endurance. It is
essential that the examination on which
ratings are based adequately portray the
anatomical damage, and the functional
loss, with respect to all these elements.
The functional loss may be due to absence
of part, or all, of the necessary bones,
joints and muscles, or associated
structures, or to deformity, adhesions,
defective innervation, or other
pathology, or it may be due to pain,
supported by adequate pathology and
evidenced by the visible behavior of the
claimant undertaking the motion. Weakness
is as important as limitation of motion,
and a part which becomes painful on use
must be regarded as seriously disabled.
A little used part of the musculoskeletal
system may be expected to show evidence
of disuse, either through atrophy, the
condition of the skin, absence of normal
callosity or the like.
38 C.F.R. § 4.45 provides:
As regards the joints the factors of
disability reside in reductions of their
normal excursion of movements in
different planes. Inquiry will be
directed to these considerations:
(a) Less movement than normal (due
to ankylosis, limitation or blocking,
adhesions, tendon-tie-up, contracted
scars, etc.).
(b) More movement than normal (from
flail joint, resections, nonunion of
fracture, relaxation of ligaments, etc.).
(c) Weakened movement (due to muscle
injury, disease or injury of peripheral
nerves, divided or lengthened tendons,
etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability
to execute skilled movements smoothly.
(f) Pain on movement, swelling,
deformity or atrophy of disuse.
Instability of station, disturbance of
locomotion, interference with sitting,
standing and weight-bearing are related
considerations.
For the purpose of rating disability from
arthritis, the shoulder, elbow, wrist,
hip, knee, and ankle are considered major
joints; multiple involvements of the
interphalangeal, metacarpal and carpal
joints of the upper extremities, the
interphalangeal, metatarsal and tarsal
joints of the lower extremities, the
cervical vertebrae, the dorsal vertebrae,
and the lumbar vertebrae, are considered
groups of minor joints, ratable on a
parity with major joints. The
lumbosacral articulation and both
sacroiliac joints are considered to be a
group of minor joints, ratable on
disturbance of lumbar spine functions.
The Board notes that at the time of the most recent VA
orthopedic examination conducted in February 1998, the
examiner reported the range of motion of the lumbar spine the
veteran was capable of performing and found no loss of
motion. The examiner also noted that the veteran complained
of pain on range of motion testing and that he complained of
lumbosacral pain which was aggravated by prolonged bending
and lifting which interfered with his ability to perform his
job as a carpenter.
With regard to the right knee disability, the examiner noted
that there was a normal range of motion. It was further
noted that the veteran complained of pain in his knee which
was aggravated by climbing, etc. The examiner reported that
the veteran had functional loss related to pain.
The Board finds that the February 1998 orthopedic examination
was inadequate as the examiner noted complaints of pain but
did not provide an assessment of the functional loss due to
pain on use or during flares for the right knee and back
despite the veteran's allegations of such symptomatology.
Such information is required in order for the veteran to be
accurately rated upon application of 38 C.F.R. §§ 4.40 and
4.45 and the Court's holding in DeLuca v. Brown, 8 Vet.
App. 202 (1995).
The Court has held that the duty to assist the veteran in
obtaining and developing facts and evidence to support his
claim includes obtaining pertinent outstanding medical
records as well as adequate VA examinations. Littke v.
Derwinski, l Vet. App. 90 (l990). This duty includes an
examination by a specialist when needed. Hyder v. Derwinski,
l Vet. App. 221 (l99l).
In light of the above discussion, it is the opinion of the
Board that a contemporaneous and thorough VA examination
would be of assistance to the Board in clarifying the nature
of the appellant's service connected right knee disability
and lumbosacral strain and would be instructive with regard
to the appropriate disposition of these issues submitted for
appellate consideration. Littke v. Derwinski, 1 Vet. App. 90
(1990).
Accordingly, this case is REMANDED for further development:
1. The M&ROC should request the veteran to
identify the names, addresses, and
approximate dates of treatment for all health
care providers, VA and non-VA, inpatient and
outpatient, who may possess additional
records pertinent to the claims of
entitlement to initial ratings in excess of
10 percent for lumbosacral strain and a right
knee disability. After obtaining any
necessary authorization or medical releases,
the M&ROC should request and associate with
the claims file legible copies of the
veteran's complete treatment reports from all
sources identified whose records have not
previously been secured. Regardless of the
response from the veteran, the M&ROC should
secure all outstanding VA treatment records.
The Board is particularly interested in
obtaining the treatment records from E. J.
A., M.D. and from the VA physician, Dr. S.
2. The M&ROC should arrange for a VA
orthopedic examination of the veteran by an
orthopedic surgeon or other appropriate
specialist in order to determine the nature
and extent of severity of the right knee
disability and the lumbosacral strain. Any
further indicated special studies should be
conducted.
The claims file and a separate copy of this
remand and the applicable criteria for
evaluation of knee injuries and back
disabilities must be made available to and
reviewed by the examiner prior and pursuant
to conduction and completion of the
examination and the examination report must
be annotated in this regard.
The examiner must record pertinent medical
complaints, symptoms, and clinical findings,
including specifically active and passive
range of motion, and comment on the
functional limitations, if any, caused by the
appellant's service connected right knee
disability and lumbosacral strain in light of
the provisions of 38 C.F.R. §§ 4.40 and 4.45.
It is requested that the examiner provide
explicit responses to the following questions
for both the right knee disability and the
lumbosacral strain:
(a) Does the service connected disability
involve only the joint structure, or does it
also involve the muscles and nerves?
(b) Does the service connected disorder
cause weakened movement, excess fatigability,
and incoordination, and if so, can the
examiner comment on the severity of these
manifestations on the ability of the
appellant to perform average employment in a
civil occupation? If the severity of these
manifestations cannot be quantified, the
examiner should so indicate.
(c) With respect to the subjective
complaints of pain, the examiner is requested
to specifically comment on whether pain is
visibly manifested on movement of the joints,
the presence and degree of, or absence of,
muscle atrophy attributable to the service
connected disability, the presence or absence
of changes in condition of the skin
indicative of disuse due to the service
connected disability, or the presence or
absence of any other objective manifestation
that would demonstrate disuse or functional
impairment due to pain attributable to the
service connected disability.
(d) The examiner is also requested to
comment upon whether or not there are any
other medical or other problems that have an
impact on the functional capacity affected by
the service connected disability, and if such
overlap exists, the degree to which the non-
service connected problem creates functional
impairment that may be dissociated from the
impairment caused by the service connected
disability. If the functional impairment
created by the non-service connected problem
can not be dissociated, the examiner should
so indicate.
All opinions expressed must be accompanied by
a complete rationale.
3. Thereafter, the M&ROC should review the
claims file to ensure that all of the
foregoing requested development has been
completed. In particular, the M&ROC should
review the requested examination report and
required opinions to ensure that they are
responsive to and in complete compliance with
the directives of this remand and if they are
not, the M&ROC should implement corrective
procedures. See Stegall v. West, 11 Vet.
App. 268 (1998).
4. After undertaking any development deemed
essential in addition to that specified
above, the M&ROC should readjudicate the
issues of entitlement to initial ratings in
excess of 10 percent for the right knee
disability and for the lumbosacral strain
with application of 38 C.F.R. §§ 4.40, 4.45,
4.59 (1999) and DeLuca v. Brown, 8 Vet.
App. 202 (1995). The M&ROC should also
document the applicability of 38 C.F.R.
§ 3.321(b)(1).
If the benefits sought on appeal are not granted to the
veteran's satisfaction, the M&ROC should issue a supplemental
statement of the case. A reasonable period of time for a
response should be afforded. Thereafter, the case should be
returned to the Board for final appellate review, if
otherwise in order. By this remand, the Board intimates no
opinion as to any final outcome warranted. No action is
required of the veteran until he is notified by the M&ROC.
RONALD R. BOSCH
Member, Board of Veterans' Appeals